Restraining orders and foreigner’s right to respect for privacy and family life in Europe

Abstract

The immigration enforcement in Europe produces a constant tension between the sovereign exercise of border control and the state’s duty to respect human rights. In this regard, the European Court of Human Rights has developed a case law that seeks to restore the harmony between respect for private and family life of foreigners and the legitimacy of restraining orders issued by States. This reflective paper studies the application of Article 8 of the European Convention on Human Rights: “Right to respect for private and family life”, taking into account the so-called national margin of appreciation of States and the analysis of proportionality in the case law of the Court. Then, the analysis shows the evolution of case law in the matter, ending with a balance between the effectiveness of Article 8 of the Convention, given the tightening of the conditions and guarantees allowed to the foreign population in Europe, and the adaptation of national legislation with the decisions of the Court